The DWI Conundrum

Good people do bad things. And sometimes, that leads to a DWI.

driving-while-drinking-enhanceinsuranceOften those bad things are done in the name of improving the human condition.

A lot of good people are doing horrible things through our legal system in an effort to reduce the number of alcohol-impaired traffic fatalities. In fact, there is a large movement to expand those activities . . . and on the surface, for good reason. The FBI reported that during 2010 1.41 million drivers were arrested for driving under the influence of alcohol or narcotics.
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The punishment for a DUI can include a severe fine, loss of driving privileges, increased insurance costs, legal fees, imprisonment, mandated rehabilitation, and a costly breathalyzer program. While I’m very much in favor of social action that prevents loss of life, it is time that more people who are unburdened by prejudice takes a look at what is going on and demand that our lawmakers start to act rationally.

According to the Centers for Disease Control and Prevention (cdc.gov website) 10,228 people died in 2010 in the U.S. in alcohol-impaired driving crashes. The CDC set the economic loss at more than $51 billion, relying on information published by the Department of Safety.

The senseless death of over 10,228 people is staggering. The last thing I would want to do is to suggest that we shouldn’t take logical steps to reduce the number of alcohol-impaired driving fatalities. People who have substance abuse problems should seek help (or their families can seek to help them).
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My question is whether the concerted effort to attack this problem through stricter DUI / DWI laws and enforcement is really an effective, logical action. Now is the time to examine these laws before forces move in the direction of making things even worse. Consider the following list of further changes the CDC advocates on their website.

  • Actively enforcing existing 0.08% Blood Alcohol Content (BAC) laws, minimum legal drinking age laws, and zero tolerance laws for drivers younger than 21 years old in all states.
  • Promptly taking away the driver’s licenses of people who drive while intoxicated.
  • Using sobriety checkpoints.
  • Putting health promotion efforts into practice that influence economic, organizational, policy, and school/community action.
  • Using community-based approaches to alcohol control and DWI prevention.
  • Requiring mandatory substance abuse assessment and treatment, if needed, for DWI offenders.
  • Raising the unit price of alcohol by increasing taxes.

Areas for continued research:

  • Reducing the illegal BAC threshold to 0.05%.
  • Mandatory blood alcohol testing when traffic crashes result in injury.

This list seems somewhat rational and to the point . . . given the 10,228 alcohol-impaired driving deaths, but it represents a huge infringement on personal freedom.

  • If “zero tolerance” isn’t being adequately enforced that might be an indication the law lacks validity where the tires meet the pavement.
  • When did we give up the right to due process? Shouldn’t a judge make the decision when a driver’s license is suspended?
  • Why is it OKAY to have sobriety checkpoints? When do we cross the line of unreasonable search?
  • What “health promotion efforts” should we be promoting? (During research for this discussion I found many articles accusing the governmental reporting bureaus of improper reporting of statistics. I found at least one instance where that appears to be so.)
  • What does “community-based” mean? Does that include taking authority out of the hands of elected officials and putting it in the hands of vigilantes?
  • Haven’t the “sin” taxes been the target long enough?

The two areas of things to be researched can also be easily dismissed.

  • The DWI BAC level already appears to be too low, lowering it will seemingly only make a bad situation worse.
  • Blood testing is invasive and dangerous if done wrong, and “injury” is a nebulous term.

operating-car-while-drunk-enhanceinsuranceConsider also that the Mothers Against Drunk Drivers (MADD) website advocates autos with breathalyzers for drunk drivers . . . which at zero tolerance could mean a lot of people.
The auto industry will rejoice in having one more expensive mandatory add-on that will constantly malfunction. Imagine the public outrage if a similar organization demanded governors be placed on cars of those who had had a simple speeding violation, that would not allow them to exceed the posted speed limit.

From an economic standpoint the 1.41 million arrests were made to offset an annual loss of $37 billion, as estimated by the NHSTA.

At minimum, some put the cost of a DUI to the individual at $45,500. . .and that doesn’t include the economic impact of not being able to get and hold a job, the cost of a breathalyzer, lost wages due to attending DUI classes, etc. Add into this the tremendous cost of law enforcement, judicial system, and in many cases — social services — and it would appear we’re spending more to prevent loss than we’re saving. While I understand that no dollar value can be set on the loss of a loved one, I’m merely trying to put this in perspective. And, as I will point out, this false economy isn’t even supported by the facts.

I have been in the insurance business for five decades. During that time I’ve been heavily involved in the sale of dram shop insurance to bars, taverns, and restaurants.

Dram shop insurance is another name for liquor legal liability insurance. About twenty years ago my agency sold dram shop insurance to one out of every three liquor licensees in the State of Minnesota.

More recently I insured about 5% of the market. I have seen the carnage involved in alcohol-impaired traffic violations and find drunk driving to be repulsive. However, I’m a realist. The huge losses I’ve seen come through my agency almost always involve someone who is extremely alcohol-impaired with a BAC over .15. In my experience it is uncommon for the driver in an alcohol-impaired fatality to be “slightly” impaired.

My experience seems to be typical, in that according to the NHTSA, in 2010, 58% of the drivers who were involved in a fatal crash who had a BAC of .01 or higher — had a BAC at or above .15. The most often recorded BAC level among drinking drivers in fatal crashes for 2010 was .15.
impaired-driving-enhanceinsuranceIn case you think I’m a shill for the liquor industry, let me assure you I currently place insurance on very few bars. Those I do place tend to be in North Dakota where roughnecks from the oilfield are the main customers. Those young gentlemen aren’t really influenced by DWI laws. Having ignored the common sense that tells you not to put your life on the line for economic gain, they’re not about to start thinking rationally when it comes to curbing their recreation.

Approximately 30% of those arrested for DWI have been caught in the past.

Drivers with a BAC level of .08 or higher in fatal crashes in 2010 were four times more likely to have a prior conviction for driving while impaired than were drivers with no alcohol. That seems to suggest that the current stringent laws are NOT a good deterrent for those who need it the most.

Hardcore drunk drivers, drivers one website estimates have an average of seven DUIs each, are highly resistant to behavioral change. They ARE the problem. Rather than direct our efforts at the casual drinker, we should be concerning ourselves with the Hardcore drunk through swift identification, certain punishment, and effective treatment.

A BAC of .08 is illegal in all states. Four beers in two hours would result in an illegal blood alcohol level for a 140 pound female. There is a move afoot to drop the illegal BAC level to .05, which would have that same female legally drunk after three beers in two hours. The logical extension of this argument is to make a BAC level of .01 become illegal. Before you think that is an overreach, consider the CDC’s recommendation listed above that there be “zero tolerance” for those under 21.
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In May of this year (2013) when the National Transportation Board recommended that all 50 states adopt an illegal BAC level of .05, its chairman Deborah Hersman said, “Most Americans think that we’ve solved the problem of impaired driving, but in fact, it’s still a national epidemic.” Her statement is just one example of heated rhetoric, in that the CDC defines an epidemic as “The occurrence of more cases of disease than expected in a given area or among a specific group of people over a particular period of time.”

In reality, the national number of fatalities due to alcohol impaired driving is quite predictable . . . and comparable to the number of deaths due to excessive speed. There were 9,944 deaths related to excessive speed in 2011.

Imagine the intense negative reaction if our laws were changed to put people in jail for traveling 10 to 20 mph over the speed limit. What we’re doing with alcohol violations is very much that kind of nonsense.

In Lewis Carroll’s novella, Through the Looking Glass, there’s a wonderful dialogue between Alice and the Red Queen:

“Well, in our country,” said Alice, still panting a little, “you’d generally get to somewhere else — if you run very fast for a long time, as we’ve been doing.”

“A slow sort of country!” said the Queen. “Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”

Reducing the level of a legal BAC has worked to marginally reduce deaths at a Draconian price, so the prevailing logic seems to be let’s double that horrible price WE pay and reduce the number slightly more.

In the same year, 2010, that 10,228 people died in alcohol-related auto accidents 597,689 people died from heart disease. Heart Disease is mostly manageable and avoidable in many instances. Why haven’t we attacked that insidious killer with the same fervor? Why isn’t it a crime to eat a triple-decker burger and large fries? Why aren’t people mandated by law to take cholesterol-lowering drugs with electronic devices used to assure compliance?

Cigarette smoking causes one out of every five deaths in the U.S. each year. A tenth of those are due to second-hand smoke. Why aren’t we throwing smokers into jail?

I’m all for treating hardcore drinkers . . . who are sick and need our help, but we’re ruining the lives of harmless, casual drinkers under the current system.

Most of the change in state laws moving the BAC level down to .08 occurred just prior to 2004. In 2001 the percentage of drivers involved in a fatal crash with a BAC at .08 or higher was 21%. In 2010, after many years of creating havoc for millions of Americans by convicting them of being legally impaired, when they probably weren’t — the percentage of driver’s involved in a fatal crash with a BAC at .08 or higher was 22%.

There had been no positive change in the percentage. All of that human carnage involved in 1.41 million arrests has occurred through senseless convictions. . .billions of dollars in fines, increased auto premiums and license suspensions . . . and no positive change.

And . . . the drums are beating incessantly to move the needle to a lower BAC, when all the evidence points directly toward the hardcore drinker being the primary problem.

There has been a distinct change in the total number of traffic fatalities, but this can be attributed in large part to safer cars, wider usage of seat-belts, and safety awareness.

dwi-driving-while-intoxicated-insuranceAs I stated above I’ve been in the insurance business for five decades. I know a little about assessing risk. During my career I’ve been everything from an underwriter of Lloyd’s of London specialty risks to the CEO of a small insurance company.

At one point in my career I was an underwriter for a company that insured long-haul trucks. We did a study of the correlation between a DWI/DUI conviction and accident loss. We found there was a much stronger tie between those who had multiple speed violations and ultimate loss. In fact, there was a stronger tie between color of vehicle and loss than there was between an alcohol violation and loss.
In 1992 and 1993 my agency was the largest producer of new business in the nation for one of the largest auto personal insurance carriers. We were so large with them that our production numbers were double the number two producer. That company asked us to take a look at writing more boat policies with them.

While my agency does business in a number of states, Minnesota is our home state and our largest in the way of premium production. Minnesota is the third largest state in the nation in the number of pleasure watercraft, after Florida and California.

After we reviewed that company’s watercraft policy we declined to place boat insurance with them, because their coverage excluded loss involving any alcohol. We believe the insured is entitled to a reasonable assumption when it comes to what is included in their coverage.

Boats and alcohol are not a good combination, but they are a VERY common combination. I live near a large lake with too many boats where drunk driving is common. I wonder how many of those “Skippers” have policies that void coverage when alcohol is involved?

I asked that company’s head of underwriting why their company would include such an odious exclusion. He told me that they had succumbed to pressure from MADD.

I have great respect for the original purpose of MADD. MADD is a group of well-meaning people who have had a great deal to do with the enactment of misguided alcohol-related driving laws. When they started in 1982 their intent was to stop “drunk driving”. Drunk driving at that time was, in most states, a BAC of .10 or more. Things had definitely gotten out of hand. MADD rightfully pushed for enforcement of the law.

I would have supported MADD in 1982, as would most people, but their efforts have been at the forefront of pushing the illegal BAC to the current ridiculously low level. In my opinion, had the change in the BAC level been to .12 with strict enforcement, the results would have been the same as far as reduction in alcohol-impaired traffic deaths.

Insurance underwriting (risk selection) is all about selecting responsible individuals. Over the years I have seen auto carriers place much more dependence on factors such as credit scores, and far less importance on a DWI conviction. Companies are risking their capital, which is a far better indication of what is actuarially sound than the rhetoric of a person who relies on funding that is based on their organization making change. Insurance companies have made the decision that a DWI conviction is no longer a huge indicator of irresponsibility.

There is a surplus of trained lawyers in this country. In 2009 twice as many people passed the bar as there were openings for employment in that field19. Could it be that the people who pass laws — largely lawyers — are creating jobs through DWI laws . . . for lawyers?

Political subdivisions in the United States are suffering financially. Could it be that the money raised through DWI fines is more than a little welcome by these starving towns and counties?

It is perfectly understandable that few politicians have the political will to stand up to the well-intended direction coming from MADD, but didn’t we settle the debate on governmental overreach on liquor nearly a decade ago?

It’s time to demand that our lawmakers do the right thing and reduce the horrific penalties for first time offenders who have a BAC under .12. We need to stop the assault on our personal freedoms by raising the BAC levels that are considered illegal to where they were fifteen and twenty years ago, or make the penalties for lower BACs much less arduous.

Other countries have lower BAC limits, but the penalties in most countries amount to a slap on the wrist when compared to ours. Many other countries wisely escalate the penalties as the BAC goes up. I agree entirely with stiff penalties for a BAC over .15.

People drink because it makes them happy. Alcohol in moderation produces euphoria. It brings a sense of well-being, relaxation, lower inhibitions, and emotions are intensified. U.S. citizens have a right to the pursuit of happiness. Wrongfully restricting that right is unconstitutional because it goes against the very reason our country was created.

By the way, since the late 80’s I hardly ever drink, to the tune of maybe a total of ten beers last year – never more than two in one day. One night I had two bloody mary’s before bed, and that was a real bender for me.

Personally, I wouldn’t dream of driving after drinking. I’m from Minnesota, the home state of Andrew Volstead, who had his own way of dealing with “Demon Rum” under the 18th amendment. Minnesota is also home to Thorstein Veblen, who authored the phrase “Conspicuous Consumption”. I have a Minnesota heritage of social constraint, but reject that constraint when it creates a huge negative social impact.

The thought of a drunk hitting me or my family is not remotely pleasant. I understand why MADD was created and why it is such a force, but, it no longer is getting the job done it was created to do. If I thought someone who had consumed three beers was a threat to me, I would not be silent. However . . . I know that the huge percentage of drivers who are either texting, or talking on the phone present a much worst risk. The NHSTA has stated that texting while driving is six times as dangerous as driving while intoxicated. States have taken steps to ban texting while driving, but the fines are in the area of $25 to $250 in most states with a few states levying hefty fines.

My eyes were opened three years ago when my son was arrested outside Steamboat Springs, Colorado. He was legally pulled over to study a map, because he thought they had missed their turn. They were coming from a rodeo where he had consumed two beers and a bump. He had arranged for a designated driver, but she had become ill and he had to drive . . . which he thought was absolutely no problem. A policeman pulled up to offer help and smelled alcohol. My son was given a roadside sobriety test, which he passed, but was required to breathe into a breathalyzer . . . and blew a .10.

Life became a living hell for him. He lost his driving privileges for three months. He then went through having his pick-up equipped with a breathalyzer. He couldn’t even use mouthwash for fear of setting off the sensitive equipment. Three strikes with the breathalyzer and the courts drop a house on you. He made it through all of the utter nonsense of educational classes and being treated like a social leper. The financial cost to him was, and is continuing to be, much more than $45,000.

It’s never really over.

He can’t even go to Canada to see his uncle because they won’t allow anyone in who has had a DWI.

My son is not a drunk. MADD, the lawyers who make the laws, and a broken system that needs money from wherever it can get it, made him a “drunk” by statute by setting the illegal BAC at a point that is much too low.

The number of repeat offenders might be a direct product of system that strips the individual of self-esteem and drives the person into the depths of abject poverty. I have to wonder why our Supreme Court hasn’t ruled these punishments cruel and unusual?

I’m not against reducing traffic fatalities attributable to alcohol–impaired drivers. It just appears we’re going at it completely wrong.

Let me offer a plausible solution. It appears that drivers who seriously over-indulge are at the heart of the problem. Someone is serving them that alcohol. I would suggest that in every accident were blood is drawn from the drivers a BAC of .12 should touch off an investigation. That investigation should determine who served the seriously impaired driver. That same investigation should occur for DWI convictions with BACs over .12.

When a person accepts a license to serve and sell alcohol they accept a public trust that they will serve and sell alcohol in a responsible manner. Liquor licenses are supposedly withdrawn or suspended for improper behavior. It happens quite often when licensees serve minors. Liquor licensees who chronically serve impaired customers should have their license suspended or withdrawn.

It seems fairly simple . . . much simpler and cheaper than demanding that everyone breathe into a breathalyzer to start their daily commute!

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Jim operates an insurance agent network called Insurance Partners, aggregating agents in the Midwest for over 25 years. He was National Agent of the Year for Metropolitan in 1993 and Midwest Agent of the Year for Travelers in 2011. He served as a founding board member of the Surplus Lines Association of Minnesota.

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